Law and the Multiverse Mailbag VIII

We’ve got some great issues for the mailbag this week, including immortality and copyright and Bizarro, court translators, and competency. As always, if you have questions or post suggestions, please send them to james@lawandthemultiverse.com and ryan@lawandthemultiverse.com or leave them in the comments.

I. Immortality and Copyright

Tony asks about the potential effect of immortal beings on copyright. We talked about some related issues here, and specifically addressed this issue in brief.

In comic books the issue is not just long-lived or immortal characters like Wolverine, but in fact most characters seem not to age much, and in the rare event they do die they usually don’t stay dead. So the ‘life of the creator plus 70 years’ term is effectively eternal for most superheroes.

As to the bit about the Constitution, well, the Supreme Court considered what ‘limited Times’ means in Eldred v. Ashcroft, 537 U.S. 186 (2003). In a 7-2 decision the Court pretty firmly held that, so long as the copyright term is finite (i.e. literally not infinite), then Congress may set the term as it pleases, including extending the term of existing works retroactively.

I don’t think even an apparently immortal character like Wolverine would upset the Court’s analysis because immortality isn’t really provable. Once someone dies you can say “yep, they were mortal alright,” but as long as someone is alive they are potentially immortal. As the joke goes: “I plan to live forever. So far, so good.” So while Wolverine is expected to live effectively forever, no one can actually say for sure if he will (well, maybe The Watcher could, but he probably won’t).”

Even in the face of people who had demonstrably lived for hundreds or even thousands of years, the Court might still hold that there are adequate measures available to ensure that works are not locked up in the hands of immortal artists. For example, the government can take a compulsory license to any copyrighted work for itself and pay only a reasonable royalty. Or it could simply invoke the Takings Clause and put the work in the public domain, though again it would have to pay fair value. These might be considered sufficient “safety valves” in the rare case that an immortal artist tries to maintain copyright for an unconstitutionally long time.

One might be tempted to have different terms depending on the apparent immortal status of the creator using their age as a proxy. So, for example, if someone has lived to an extreme old age that suggests some kind of unnatural longevity (e.g. 150 years or so), then their copyright term might be different, perhaps the corporate authorship term of 95 years from publication or 120 years from creation could be used. And indeed ordinarily discrimination on the basis of age is permissible. “States may discriminate on the basis of age without offending the Fourteenth Amendment if the age classification in question is rationally related to a legitimate state interest.” Kimel v. Florida Bd. of Regents, 528 US 62, 83 (2000). However, part of the rationale for that classification is that “old age also does not define a discrete and insular minority because all persons, if they live out their normal life spans, will experience it.” Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307, 314-14 (1976) (per curiam). That reliance on the normal life span breaks down when talking about immortal beings, since the “normal life span” definitely does not reach into the hundreds or thousands of years.

Frankly, though, it’s likely the Court would refuse to address the issue on ripeness grounds until an immortal-owned work had been under copyright for a longer period than any non-immortal-owned work, which might take a while. Until that point there isn’t a real case or controversy.

II. Bizarro, Court Translators, and Competency

Keith asks whether or not Bizarro would be afforded a translator in court. To the extent that a translator, i.e. one who understands and can communicate in two languages, is necessary, an effort would be made to find one and a Due Process issue would exist if one could not be found. But it’s debatable as to whether or not one would actually be necessary. Bizarro speaks some version of English and to the extent that he has difficulty understanding and communicating with other characters, this has less to do with not being fluent in English than with his overall low intelligence. This isn’t necessarily something courts go out of their way to accommodate, but even so what would be needed is less translation than explanation.

It is possible, though, that a court would decide that because of Bizarro’s low intelligence he can’t adequately participate in his own defense if he is required to translate for himself. Translating from Bizarro Speak to English is a little hard for normal people, and it may be a bit too much to expect Bizarro to go the other direction, given his low intelligence. A court may also decide that it’s sufficient for Bizarro’s (quite possibly court-appointed) attorney to handle the translation / explanation rather than appointing a dedicated translator. After all, it’s not like there are a lot of professional Bizarro translators out there, so the attorney would likely do as good a job as anybody.

There’s a related issue of competency, i.e. would Bizarro be judged fit to stand trial at all? The answer here is probably “yes.” Dumb as Bizarro and his fellow Bizzaro-World dwellers may be, they do demonstrate some understanding of how Earthly society works and maintain some level of organized civilization on their own world. When courts find that defendants are unfit to stand trial they are normally looking for evidence that the defendant does not actually understand that they are in court and have been charged with a crime. Bizarro might not have a detailed understanding of how Earth courts work (and the whole proceeding may seem manifestly unjust to him), but there doesn’t seem to be any indication that he’d have trouble understanding what they do.

In short: Bizarro might need a translator but would probably be adjudicated fit to stand trial whether he needed a translator or not.

I think the issue with Bizarro is not so much his level of intelligence as his reverse understanding of things, at least as he was portrayed in the Silver Age: Beauty is ugly; smart is stupid; etc. Would Bizarro understand the difference between truth and falsehood? Or would he reverse them, considering a lie to be of greater probative value than the truth. Would he consider it more moral to lie under oath than to speak the truth?

A technical detail: Insanity is a defense put on at trial. You can be competent to stand trial but found not guilty by reason of insanity, just as you can be incompetent to stand trial but (were you competent) almost certain to be found guilty. So while Bizarro might be insane, he may still be competent.

I would argue, though, that Bizarro is probably not insane. He seems to understand that everything on Earth is backwards, so, for example, right is wrong and wrong is right. Thus, while our laws may seem utterly backwards to him, it seems likely that he understands them and could, with some thought, navigate our legal and cultural norms.

“Would he consider it more moral to lie under oath than to speak the truth?”

He might, but the more appropriate question is whether he’s capable of understanding that, in our world, things are reversed. If he understands that, then choosing not to follow our laws is still a crime. If he can’t understand that, then he might have a defense of insanity or possibly be incompetent. But I think the evidence in the comics is that he does understand that things are backwards on Earth, so theoretically he should be able to act accordingly when in our world.

That’s been my understanding of Bizarro, too. He knows (because he recites the Bizarro Code) that his ways are specifically not ours. What’s unclear is his motivation for then coming to violate our laws, but it’s either willful to show us we’re wrong or poorly-considered, neither of which, as I understand it, is a particularly valid defense.

I’m running a superhero tabletop RPG soon, and I’m going to have an old-school mad scientist as a supporting character — and I do mean “Old School”: he’s been in prison since the 1950s, and was already pretty elderly when he was sentenced.

I made an off-hand joke today about him serving “the third of four consecutive life sentences”, with the implication that, yes, he’s actually died and come back to life at least twice during his incarceration.

So, there’s the question: you hear now and then about someone who’s committed crimes so heinous and numerous that he gets consecutive life sentences. From what I’ve read, these are handed down by the judge to reduce the chances of parole.

If someone dies in prison — legally dead, confirmed by a physician — is that considered to have “fulfilled” a life sentence?

At the very least it would probably depend on the nature of the death. For example, “dying” knowing that you’ll come back with the intention of avoiding a life sentence probably won’t work. So, for example, if Ra’s al Ghul killed himself in prison (or arranged for his death) knowing that he’d be revived, a court probably wouldn’t buy it.

The Chinese government recently declared Reincarnation to be illegal (obviously targeted at the Dali Lama). The new commentators follow-on joke was “The penalty is Death and we’ll execute you as often as necessary to make it stick!”

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On this blog we discuss fictional scenarios; nothing on this blog is legal advice. No attorney-client relationship is created by reading the blog or writing comments, even if the authors write back. The authors speak only for themselves, and nothing on this blog is to be considered the opinions or views of the authors’ employers.